Doug Keller, Resolving a "Substantial Question": Just Who is Entitled to Bail Pending Appeal under the Bail Reform Act of 1984?

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ABSTRACT:: Under the Bail Reform Act of 1984, federal criminal defendants who wish to remain free on bail after conviction must prove that their appeal will have enough merit to raise at least one “substantial question.” Federal appellate courts, however, have been deeply divided over how much merit is required to show that an appeal will raise a “substantial question.” Ten circuits define the phrase as a “close question,” based on an implausible reading of the 1984 Bail Act’s legislative history. But the Ninth Circuit has interpreted the requirement to mean that a defendant must prove that his appeal will raise a “fairly debatable” issue-the historical definition of what constitutes a substantial question. It is therefore much easier to obtain bail pending appeal in the Ninth Circuit than in circuits using the close-question test. This Article argues that the Ninth Circuit has it right, and thus, countless defendants in other circuits have been wrongfully denied bail pending appeal. At least some of those defendants have had their convictions overturned on appeal, resulting in the gross injustice of a wrongful incarceration.